The Supreme Court Transcripts from the Video Games Ban Case - Part 1

The video games law case is a tricky beast, and although there's no way to really tell how the Supreme Court will rule on the case of Schwarzenegger vs. The Entertainment Merchants Association and Entertainment Software Association, the just-published transcripts of today's opening oral arguments could give some indication of how the justices are leaning. Reading the transcripts is fascinating, and surprisingly lighthearted and informal.

For instances, check out this exchange between Justice Scalia and Zackery Morazzini. Morazzini is presenting the case for the state of California.

MR. MORAZZINI: California asks this Court to adopt a rule of law that permits States to restrict minors' ability to purchase deviant, violent video games that the legislature has determined can be harmful to the development

JUSTICESCALIA: What's a deviant -- a deviant, violent video game? As opposed to what? A normal violent video game?

MR. MORAZZINI: Yes, Your Honor. Deviant would be departing from established norms.

JUSTICE SCALIA: There are established norms of violence?

MR. MORAZZINI: Well, I think if we look back -

JUSTICE SCALIA: Some of the Grimm's fairy tales are quite grim, to tell you the truth.

MR. MORAZZINI: Agreed, Your Honor. But the level of violence -

JUSTICE SCALIA: Are they okay? Are you going to ban them, too?

While that exchange indicates to me that Scalia, at least, is considering whether or not games are different from other forms of art, the following back and forth between Morazzini, Justice Kagan and Justice Sotomayor covers another interesting aspect of the argument, specifically, the issue of whether games are "harmful" to minors, which is the lynchpin of California's case.

JUSTICE KAGAN: Well, do you actually have studies that show that video games are more harmful to minors than movies are?

MR. MORAZZINI: Well, in the record, Your Honor, I believe it's the Gentile and Gentile study regarding violent video games as exemplary teachers. The authors there note that video games are not only exemplary teachers of pro-social activities, but also exemplary teachers of aggression, which was the fundamental concern of the California legislature in enacting this statute. So while the science is continually developing, indeed, it appears that studies are being released every month regarding--

JUSTICE KAGAN: Suppose a new study suggested that movies were just as violent. Then, presumably, California could regulate movies just as it could regulate video games?

MR. MORAZZINI: Well, Your Honor, there is scientific literature out there regarding the impact of violent media on children. In fact, for decades, the President, Congress, the FTC, parenting groups, have been uniquely concerned with the level of violent media available to minors that they have ready access to.

JUSTICE SOTOMAYOR: I don't think; is that answering Justice Kagan's question? One of the studies, the Anderson study, says that the effect of violence is the same for a Bugs Bunny episode as it is for a violent video. So can the legislature now, because it has that study, say we can outlaw Bugs Bunny?

MR. MORAZZINI: No.

This exchange between Justice Kagan and Morazzini covers some of the difficulties that manufacturers would face, if California's law were to be deemed Constitutional.

JUSTICE KAGAN: I read your briefs all the way through and the only thing that I found you said that was clearly
covered by this statute was Postal 2. But presumably the statute applies to more than one video game. So what else does it apply to? How many video games? What kind of video games? I mean, how would you describe in plain English what morbid violence is, what you have to see in a video game for it to be covered?

MR. MORAZZINI: Okay. Justice Kagan, I would go back to the language of the statute, and the statute covers video games where the range of options available to the player includes maiming, killing, dismembering, torturing, sexually assaulting, and those types of violence. So I would look to games where -

JUSTICE KAGAN: So anything that has those kinds of violence counts?

MR. MORAZZINI: No, and then we would move to the three prongs of the Miller standard, Your Honor. We would look to see--

JUSTICE KAGAN: Well, so how do we separate violent games that are covered from violent games just as violent that are not covered?

MR. MORAZZINI: Well, Your Honor, I think a jury could be instructed with expert testimony, with video clips of game play, and to judge for themselves whether -12

JUSTICE SCALIA: I'm not concerned about the jury judging. I'm concerned about the producer of the games who has to know what he has to do in order to comply with the law. And you are telling me, well a jury can -- of course a jury can make up its mind, I'm sure. But a law that has criminal penalties has to be clear. And how is the manufacturer to know whether a particular violent game is covered or not?

MR. MORAZZINI: Well, Your Honor

JUSTICE SCALIA: Does he convene his own jury and try it before -- you know, I really wouldn't know what to do as a manufacturer.

Another important aspect of California's case is basically asking that the current legal test for "obscenity" be applied to violence in games as opposed to, say, sex in movie. Justice Kennedy explained it like this:

JUSTICE KENNEDY: Let me just make one comment on that point. It seems to me all or at least the great majority of the questions today are designed to probe whether or not this statute is vague. And you say the beauty of the statute is that it utilizes the categories that have been used in the obscenity area, and that there's an obvious parallel there. The problem is, is that for generations there has been a societal consensus about sexual material. Sex and violence have both been around a long time, but there is a societal consensus about what's offensive for sexual material and there are judicial discussions on it. Now, those judicial discussions are not precise. You could have had the same questions today with reference to an obscenity statute, and we have -- we have said that, with reference to obscenity there are certain -- that there are certain materials that are not protected. Those rules are not precise at the margins and some would say not precise in a more significant degree as well. But you are asking us to go into an entirely new area where there is no consensus, no judicial opinions. And this is -- and this indicates to me the statute might be vague, and I just thought you would like to know that -- that reaction.

Justices Ginsburg and Scalia discussed the enforcement of the California law, and how that might look, were the decision upheld. Scalia even made a legal joke.

JUSTICE GINSBURG: does California have any kind of an advisory opinion, an office that will view these videos and say, yes, this belongs in this, what did you call it, deviant violence, and this one is just violent but not deviant? Is there -- is there any kind of opinion that the -- that the seller can get to know which games can be sold to minors and which ones can't?

MR. MORAZZINI: Not that I'm aware of, Justice Ginsburg.

JUSTICE SCALIA: You should consider creating such a one. You might call it the California office of censorship. It would judge each of these videos one by one. That would be very nice.

MR. MORAZZINI: Your Honor, we -- we ask juries to judge sexual material and its appropriateness for minors as well. I believe that if -- if we can view the

JUSTICE SCALIA: Do we let the government do that? Juries are not controllable. That's the wonderful thing about juries, also the worst thing about juries.
(Laughter.)

Lest you think the Supremes were only picking apart California's arguments, they also took the ESA to task for their arguments. More on that in Part 2, coming shortly.